PARALYSIS OF MEDIAN NERVE

Summary

The Veteran, an Air Force Veteran who served from November 1981 to January 1992, appeals the denial of an increased rating for carpal tunnel syndrome of the left wrist and the remand of claims for degenerative joint disease (DJD) of the great toes and Total Disability based on Individual Unemployability (TDIU). The Board denied the carpal tunnel syndrome claim, finding that the evidence did not support a rating higher than the current 10 percent. The Board noted that while the Veteran experienced symptoms and underwent surgery, VA examinations consistently assessed mild incomplete paralysis, which did not meet the criteria for a higher rating. The Board also found that the Veteran's claims for DJD of the great toes and TDIU were remanded due to inadequacies in the VA examination. Specifically, the examination failed to differentiate symptoms of DJD from flat feet and did not address a 2018 surgery on the left great toe, rendering the assessment of current severity unclear. The TDIU claim was remanded as it was inextricably linked to the DJD issue. The Board denied the carpal tunnel claim, finding the evidence persuasively against a higher rating, and remanded the DJD and TDIU claims for further development.

Rationale

Evidence persuasively against higher rating; VA examinations assessed mild incomplete paralysis; Did not meet criteria for moderate incomplete paralysis

Full Decision Text

Citation Nr: 22015780
Decision Date: 03/19/22	Archive Date: 03/19/22

DOCKET NO. 15-32 807
DATE: March 19, 2022

ORDER

A disability rating in excess of 10 percent for carpal tunnel syndrome of the left wrist is denied.  

REMANDED

Entitlement to a disability rating in excess of 10 percent prior to August 22, 2018, and in excess of 10 percent beginning March 1, 2019, for degenerative joint disease (DJD) of the great toes, is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded.

FINDING OF FACT

For the entire rating period on appeal, the Veteran's carpal tunnel syndrome of the left wrist has been productive of, at worst, mild incomplete paralysis of the left median nerve. 

CONCLUSION OF LAW

The criteria for an award of a disability rating in excess of 10 percent for carpal tunnel of the left wrist have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8515.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from November 1981 to January 1992. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In September 2021, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development.  After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board.  See January 2022 supplemental statement of the case.

1. A disability rating in excess of 10 percent for carpal tunnel syndrome of the left wrist is denied. 

The Veteran contends that the symptoms of his carpal tunnel syndrome of the left wrist are worse than currently rated. 

Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the evaluations to be assigned to the various disabilities.

If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

The Veteran's left wrist carpal tunnel syndrome is currently evaluated under Diagnostic Code 8599-8515 at 10 percent effective January 6, 2004.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous.  38 C.F.R. § 4.20.

Because the Veteran's specific diagnosis of carpal tunnel syndrome was not listed in the Rating Schedule, Diagnostic Code 8599 was assigned pursuant to 38 C.F.R. § 4.27, which provides those unlisted disabilities requiring rating by analogy will be coded first by the numbers of the most closely related body part and "99."  See 38 C.F.R. § 4.20.  Here, the most closely analogous diagnostic code was Diagnostic Code 8515 for paralysis of the median nerve.

The evidence of record, including multiple VA examinations, documents that the Veteran's left wrist is on his non-dominant (minor) side.

Under Diagnostic Code 8515, a 10 percent rating is warranted for incomplete paralysis of the minor median nerve that is mild.  A 20 percent rating is warranted for incomplete paralysis of the minor median nerve that is moderate.  A
.F.R. § 4.27, which provides those unlisted disabilities requiring rating by analogy will be coded first by the numbers of the most closely related body part and "99."  See 38 C.F.R. § 4.20.  Here, the most closely analogous diagnostic code was Diagnostic Code 8515 for paralysis of the median nerve.

The evidence of record, including multiple VA examinations, documents that the Veteran's left wrist is on his non-dominant (minor) side.

Under Diagnostic Code 8515, a 10 percent rating is warranted for incomplete paralysis of the minor median nerve that is mild.  A 20 percent rating is warranted for incomplete paralysis of the minor median nerve that is moderate.  A 30 percent rating is warranted for incomplete paralysis of the major median nerve that is moderate.  A 40 percent rating is warranted for incomplete paralysis of the minor median nerve that is severe.  A 50 percent rating is warranted for incomplete paralysis of the major median nerve that is severe.  A 60 percent rating is warranted for complete paralysis of the minor median nerve that results in the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm; flexion of wrist weakened; pain with trophic disturbances.  A 70 percent rating is warranted for complete paralysis of the major median nerve that results in the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm; flexion of wrist weakened; pain with trophic disturbances.  38 C.F.R. § 4.124a, Diagnostic Code 8515.

The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

The Board notes, for reference and illustrative purposes, that the definition for "mild" includes not very severe.  Webster's II New College Dictionary at 694 (1995).  In addition, a synonym for "mild" is "slight" and definitions for "slight" include small in size, degree, or amount.  Id. at 1038.  The definitions for "moderate" include of average or medium quantity, quality, or extent.  Id. at 704.  Finally, definitions of "severe" include extremely intense.  Id. at 1012.  It is noted that the term "moderately severe" indicates impairment greater than moderate but not to the extent as to be considered severe.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree.  The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves."  The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.  See Miller v. Shulkin, 28 Vet. App. 376 (2017).

The Veteran contends that he is entitled to a higher rating for his service-connected carpal tunnel syndrome.  

At the outset
, or at most, the moderate degree.  The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves."  The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.  See Miller v. Shulkin, 28 Vet. App. 376 (2017).

The Veteran contends that he is entitled to a higher rating for his service-connected carpal tunnel syndrome.  

At the outset, the Board notes that the appeal period now before the Board begins on January 6, 2004, which is when service connection went into effect for this condition as established by the August 2010 Board decision.  Subsequent to the Board's August 2010 decision, the RO assigned a 10 percent rating for the Veteran's left wrist carpal tunnel syndrome effective January 6, 2004.  Afterwards, the Veteran disagreed with initial rating assigned and filed a claim for increased rating in March 2011.  The claim has remained on appeal ever since and has been actively pursued.  Therefore, the appeal period now before the Board begins on January 6, 2004, which is when service connection went into effect for the Veteran's left wrist carpal tunnel syndrome. 

Turning to the relevant evidence of record, in a December 2005 private treatment record, the Veteran reported experiencing numbness, tingling, and intermittent pain in his left hand over the previous year that was exacerbated by his occupation, which required repetitive motion of the wrists.  After examination, the examiner diagnosed carpal tunnel syndrome of the left wrist.

In February 2006, the Veteran underwent a surgical procedure, specifically an endoscopic carpal tunnel release, to treat his left wrist carpal tunnel syndrome.

Following the procedure, in April 2006, the physician who performed the February 2006 procedure wrote to the Veteran's employer, stating that the Veteran still experienced hand weakness after the surgery.  The examiner recommended that the Veteran only perform duties involving repetitive movements of the wrist for four hours per day and type for no more than three hours at a time.

In an August 2006 VA medical examination report, the Veteran stated that he had experienced carpal tunnel symptoms in the left hand since April 2005.  Since the February 2006 left wrist operation, he had noticed diminished numbness and tingling of the fourth and fifth fingers.  However, he still experienced sensory problems of the left thumb with continued numbness.  After examination, the examiner diagnosed carpal tunnel of the left hand.

In a May 2007 VA medical examination report, the Veteran reported experiencing acute exacerbations of left wrist pain of eight out of 10 intensity about four to five times in the previous year, lasting for approximately two to three days.  The examiner diagnosed left wrist status post carpal tunnel release, February 2006.  Upon examination, carpal grind test was negative, Tinel's sign test was positive for paresthesias in an ulnar nerve distribution.  Phalen's sign test was negative for medial nerve dysesthesias and paresthesias.  No thenar, hypothenar, or other muscle atrophy was present.  Sensation was intact to all dermatomes of the left hand, and grip strength was normal.  

In an April 2009 VA medical examination report, the Veteran reported numbness and weakness and numbness in the left upper extremity.  The examiner noted that reflexed were 1+ in the left upper extremity, motor strength was 5/5, and sensation was intact to sharp/dull testing.  The examiner assessed mild carpal tunnel syndrome.  

The Veteran was afforded a VA wrist conditions examination in October 2013 in which the examiner diagnosed the Veteran with carpal tunnel syndrome in his left wrist.  During examination, the Veteran reported numbness and tingling in his fingertips, as well as pain ranging from a 0 to 6 on a scale of 10.  The examiner noted the Veteran underwent carpal tunnel release surgery in 2009 with no further surgeries or reported injuries.  The occasional use of a wrist brace was noted when prolonged use was anticipated.  

In conjunction with the October 2013 VA wrist examination, the Veteran underwent a peripheral nerves examination that same month.  The examiner diagnosed the Veteran with bilateral neuropathy of the arms and feet.  The examiner noted a history of complaints of numbness in the Veteran's arms and legs.  Upon examination, the examiner noted symptoms of mild intermittent pain, paresthesias and/or dysesthesias, and numbness
 in his fingertips, as well as pain ranging from a 0 to 6 on a scale of 10.  The examiner noted the Veteran underwent carpal tunnel release surgery in 2009 with no further surgeries or reported injuries.  The occasional use of a wrist brace was noted when prolonged use was anticipated.  

In conjunction with the October 2013 VA wrist examination, the Veteran underwent a peripheral nerves examination that same month.  The examiner diagnosed the Veteran with bilateral neuropathy of the arms and feet.  The examiner noted a history of complaints of numbness in the Veteran's arms and legs.  Upon examination, the examiner noted symptoms of mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the upper left extremity. Muscle strength was normal with no atrophy.  Sensory testing revealed decreased sensation in the left hand and fingers, however, no trophic changes were noted.  Ultimately, the examiner reported that the Veteran had mild incomplete paralysis of the radial, median, and ulnar nerves of the upper extremities.  It was further noted that electromyography (EMG) testing in 2009 indicated normal nerve condition in the upper extremities.  Lastly, the examiner noted no functional impact.  

In July 2014, the Veteran was afforded another peripheral nerves VA examination.  The examiner confirmed the Veteran's diagnosis of peripheral neuropathy of the bilateral upper and lower extremities.  During examination, the Veteran reported numbness and tingling in the left arm.  No reported weakness, loss of grip, difficulty walking, bowel, or bladder incontinence was noted.  Symptoms noted by the examiner included mild intermittent pain, paresthesias and/or dysesthesias, and numbness.  Muscle strength was normal with no atrophy. Reflexes were noted as hypoactive (+1) in the biceps and triceps.  Sensory testing revealed decreased sensation in the left hands and fingers.  No trophic changes were noted, and special median nerve testing was negative for the left wrist.  No assistive devices were noted, and 2009 EMG testing was indicated as normal with no functional impact due to the Veteran's left wrist condition.  Ultimately, the examiner opined that the Veteran's neuropathy was mild with incomplete paralysis of the median and ulnar nerves of the left wrist.  

Contemporaneous VA treatment records note ongoing complaints of left wrist carpal tunnel including pain, numbness, and tingling. 

Subsequent to the Board's September 2021 remand, the Veteran was afforded a VA peripheral nerves examination also in December 2021.  During examination, the Veteran reported ongoing difficulties with his fine motor skills including grip and limited repetitive use ability. Current treatment included only the use of a wrist brace.  The examiner noted symptoms of mild upper left extremity paresthesias and/or dysesthesias with mild numbness. Reflex and muscle strength testing was normal with no atrophy.  Sensory testing indicated decreased sensation in the Veteran's left hand and fingers.  No trophic changes were reported.  Overall, the examiner noted the Veteran had mild incomplete paralysis of the median nerve.  Occasional use of a wrist brace was also noted along with a "barely visible scar from carpal tunnel release surgery."  Functionally, the examiner noted the Veteran would be expected to miss 0 to 1 weeks of work over the course of a 12-month period due to his condition.  

Based on the evidence of record, the Board finds that the evidence is persuasively against the assignment of a disability in excess of 10 percent for the Veteran's left wrist carpal tunnel syndrome at any time during the appeal period.  As noted above, under DC 8515, a 20 percent rating is warranted for moderate incomplete paralysis of the minor extremity.  The evidence of record is persuasively against finding such manifestation. 

During VA examinations, the Veteran had symptoms attributable to his peripheral nerve conditions, to include mild left intermittent pain (usually dull), mild paresthesias and/or dysesthesias, and mild bilateral numbness.  His muscle strength testing was normal with no muscle atrophy.  The Veteran did not have trophic changes attributable to peripheral neuropathy.  The VA examiners of record assessed mild incomplete paralysis of the median nerve in the left upper extremities.  Although the Board reiterates that it is not bound by the descriptions of the VA examiners, it is evidence to be taken into consideration.  Here, the Board finds that those descriptions are consistent with the examination findings themselves, which reflect impairment that is small in size, degree, or amount (i.e., mild), and do not reflect that he met or more nearly approximated impairment that was of medium quantity, quality, or extent (i.e., moderate).
 bilateral numbness.  His muscle strength testing was normal with no muscle atrophy.  The Veteran did not have trophic changes attributable to peripheral neuropathy.  The VA examiners of record assessed mild incomplete paralysis of the median nerve in the left upper extremities.  Although the Board reiterates that it is not bound by the descriptions of the VA examiners, it is evidence to be taken into consideration.  Here, the Board finds that those descriptions are consistent with the examination findings themselves, which reflect impairment that is small in size, degree, or amount (i.e., mild), and do not reflect that he met or more nearly approximated impairment that was of medium quantity, quality, or extent (i.e., moderate).  As such, a disability rating in excess of 10 percent is not warranted.

The Veteran has not challenged the accuracy of the findings reported on VA examinations.  He has also not contended, nor does the record otherwise reflect, that he would have greater impairment but for the use of medication.  See Jones v. Shinseki, 26 Vet. App. 56 (2012).  Similarly, he has not contended that either disability warrants consideration of a schedular alternative to Diagnostic Code 8515, nor is such reasonably raised by the record.  See Morgan v. Wilkie, 31 Vet. App. 162 (2019).

In light of the foregoing, the Board concludes that evidence of record is persuasively against the claim.  As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and a disability rating in excess of 10 percent for left upper extremity carpal tunnel syndrome is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.  The appeal of this issue is denied.

REASONS FOR REMAND

1. Entitlement to a disability rating in excess of 10 percent prior to August 22, 2018, and in excess of 10 percent beginning March 1, 2019, for DJD of the great toes, is remanded.

In September 2021, the Board remanded the Veteran's claim in September 2021 to obtain a new VA examination to help determine the current severity of the Veteran's DJD of the great toes.  The Board's remand referenced the age of the October 2013 VA examination as well as the subsequent August 2018 surgery on his left great toes as reasons for the remanded. 

Pursuant to the Board's remand, the Veteran underwent a VA foot conditions examination in December 2021.  The Board finds the December 2021 VA examination to be inadequate for adjudicative purposes and a remand is required on several grounds. 

First, the December 2021 examiner appears to have focused entirely on the Veteran's flat feet condition during examination without differentiating the symptomology attributable to the Veteran's DJD of the great toes.  Symptoms noted throughout examination reference the feet condition and only sporadically the Veteran's bilateral great toe disability.  Therefore, the current severity of the Veteran's great toes remains unclear rendering the Board unable to accurately rate the disability at this time.  Therefore, a remand for another VA examination is warranted. 

Second, the Board's September 2021 remand included reference to the Veteran's August 2018 surgery on his left great toe as a reason for the need for a new VA examination in order to ascertain the disability's current severity.  Unfortunately, the examiner failed to address or consider the August 2018 surgery.  The December 2021 examiner noted only past surgeries in 2008 and 2009 with no mention of the most recent surgery in August 2018.  See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative); see also, Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).  As the December 2021 VA examiner failed to consider the August 2018 surgery on the Veteran's left great toe, the probative value and adequacy of this examination is called into question.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

A remand by the Board confers upon the claimant a legal right to substantial compliance with the remand order; thus, when the Board's remand directives are not satisfied, the Board errs as a matter of law if it fails to ensure substantial compliance with such directives
444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).  As the December 2021 VA examiner failed to consider the August 2018 surgery on the Veteran's left great toe, the probative value and adequacy of this examination is called into question.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

A remand by the Board confers upon the claimant a legal right to substantial compliance with the remand order; thus, when the Board's remand directives are not satisfied, the Board errs as a matter of law if it fails to ensure substantial compliance with such directives.  See Stegall, 11 Vet. App. at 271.  Therefore, as substantial compliance with the Board's September 2021 remand directives has not occurred as set forth above, the Veteran's claim must once again be remanded for further development.  See id.

2. Entitlement to TDIU is remanded.

The Veteran asserts that his service-connected disabilities prevent him from obtaining employment.  Therefore, the matter of entitlement to a TDIU is inextricably intertwined with the remanded issue of entitlement to higher rating for the bilateral great toe disability; accordingly, the issue of entitlement to a TDIU must be remanded as well.  See Parker v. Brown, 7 Vet. App. 116 (1994); see also Harris v. Derwinksi, 2 Vet. App. 180, 183 (1991).

The matters are REMANDED for the following action:

1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159.  The evidence obtained, if any, should be associated with the record.

2. Schedule the Veteran for a VA examination before an appropriate examiner to determine the current severity of his degenerative joint disease of the great toes.  The claims file and this remand should be made available to the examiner.  

The examiner shall provide a full description of the Veteran's disability and discuss all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms.  To the extent possible, the examiner shall identify any functional and occupational effects or impairments due to his bilateral great toe disability.

In that regard, the examiner is also asked to differentiate, if possible, any symptoms associated with the Veteran's bilateral great toe disability and his service-connected pes planus (flat feet). 

The examiner is directed to consider the Veteran's lay statements of symptom worsening as well as the symptoms and treatments of record that were not referenced during the 2021 VA examination including an August 2018 surgery on the Veteran's left great toe. 

Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran.  An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation.

That said, if it is the examiner's conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible.  In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question.

3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence.  If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response. 

 

 

J. Ragheb

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. F. Minnitte, Attorney Advisor

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.